Hinekieyllflnsnydernp
`
`ATTORNEYS AT LAW
`
`28 State Street
`
`Amy 3- Spagnole, Esq.
`aSPag"0le@’“1SlaW-00m
`Direct (617) 3 73-4204
`
`Boston, MA 02109-1775
`TEL: 517.345.9000
`FAX: 617.345.9020
`www.has|aw.com
`
`
`
`-I--I-AB
`
`December 30, 2005
`
`VIA FIRST CLASS MAIL
`
`United States Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Re:
`
`Notice of Opposition
`of United States Trademark
`
`Application No.: 78/541,146
`Applicant: ZoneChefs LLC
`Mark: FROZONE.
`
`Classes: 29, 30
`
`Dear Madam:
`
`The following documents are submitted in connection with U.S. Application Serial No.
`78/541,146, filed by ZoneChefs LLC, for the mark FROZONE in International Classes 29 and
`30 on the Principal Register:
`
`1. Notice of Opposition With Exhibits 1-9;
`
`p 2. Opposition fee, $600.00, by check No. 68562 for 2 classes;
`
`3. Certificate of Mailing dated December 30, 2005; and
`
`4. Authorization to charge Deposit Account.
`
`The Commissioner is authorized to charge any additional needed fees and to credit any
`overpayments to Account No. 50-0485, Hinckley Allen & Snyder LLP.
`
`
`
`Encl sures
`
`cc:
`
`Deborah L. Benson (W/o Encl.)
`
`565038
`
`01-04-2006
`US. Patent & TMOfcITM Mail Rcpt D1. #72
`
`1500 Fleet Center, Providence, RI 02903-2393 TEL: 401.274.2000 FAX: 401.277.9600
`43 North Main Street, Concord, NH 03301-4934 TEL: 603.225.4334 FAX: 603.224.8350
`
`
`
`

`
`IN THE UNITED STATES PATENT & TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARJD
`
`)
`
`) )
`
`) )
`
`BARRY D. SEARS Ph.D.,
`
`Opposer,
`
`V-
`
`ZONECHEFS, LLC,
`
`)
`)
`)
`)
`Applicant.
`)
`
`)
`
`Opposition No.
`
`Mark:
`Serial No.:
`Classes:
`
`FROZONE
`78/541,146
`29, 30
`
`NOTICE OF OPPOSITION
`
`Barry D. Sears, Ph.D., a United States citizen, with an address of 222 Rosewood Drive,
`
`Suite 500, Danvers, Massachusetts 01923 (hereafter “Opposer” or “Dr. Sears”) believes that he
`
`will be damaged by registration of the mark shown in Application Serial No. 78/541 ,l46 for the
`
`mark FROZONE for “prepared entrees, side dishes and meals consisting primarily of meat,
`
`poultry or vegetables,” in International Class 29 and “prepared entrees, side dishes and meals
`
`consisting primarily of rice and pasta, baked goods consisting of cakes, cookies and muffins,” in
`
`International Class 30 on the Principal Register filed on January 3, 2005 by Zone Chefs, LLC, a
`
`New York limited liability company with an address of 8608 Foster Avenue, Brooklyn, New
`
`York 11236, and hereby opposes the same. As grounds for this opposition, Opposer alleges as
`
`follows:
`
`\‘
`
`FACTS
`
`01/09/2006 GTHHMSE 00000054 78541145
`01 FC:6402
`
`l.
`
`Opposer is the owner of the trademark ZONE and other marks incorporating
`
`ZONE for health and nutrition products and services.
`
`#564037
`
`

`
`2.
`
`Since 1995, Opposer has used the trademark ZONE and composite marks, all
`
`incorporating ZONE as the dominant portion thereof, such as ZONE LABS, ZONENET, ZONE
`
`CAFE, ZONE CUISINE, ZONE SKIN CARE, ZONERX, and DR. SEARS ZONE, in
`
`connection with a wide variety of branded health and nutrition products and services, including
`
`print and electronic publications, educational and counseling services, meal delivery services,
`
`prepared foods, vitamins and supplements, meal replacements bars and drinks, skin care products
`
`and restaurant and cafe services. Such use has been ongoing and continuous.
`
`3.
`
`Opposer, Dr. Barry Sears, is the scientist and author who achieved considerable
`
`fame in connection with the lifelong hormonal and insulin control program that he first created
`
`about fifteen (15) years ago. E Declaration of Barry D. Sears (“Sears Dec1.”)1] 1, attached
`
`hereto at Exhibit 1.
`
`4.
`
`Dr. Sears’ program uses food as a drug to help people control and balance their
`
`hormonal and insulin levels to achieve maximum mental productivity and as a means to
`
`improved health. Lg at 1] 2.
`
`5.
`
`Dr. Sears branded his writing, teaching and consulting on the benefits of an
`
`insulin balanced hormonal control diet with the term “ZONE.” I_cL at 1[ 3.
`
`6.
`
`Dr. Sears adopted the term ZONE as his trademark to analogize the health
`
`benefits of his products and services compliant with his hormonal control program for ordinary
`
`dieters to that of the “flow” achieved by superior athletes during sports participation. 1<_l_. at 1] 4.
`
`7.
`
`The terms “flow” or “zone” have been used to denote a heightened state of
`
`consciousness during sports participation during which an athlete performs to the best of his or
`
`her ability. An article discussing this concept is attached at
`
`#564037
`
`2
`
`

`
`8.
`
`The term ZONE in Dr. Sears’ ZONE Marks is not used in its ordinary sense to
`
`mean “an area” -- e.g., “play zone” describing a specific area dedicated to playing.
`
`9.
`
`Since creation of his hormonal control/insulin balanced program, Dr. Sears has
`
`provided a wide array of health and nutrition products and services that are compliant with this
`
`program under the trademark ZONE and composite trademarks all containing ZONE as the
`
`dominant portion thereof, including, but not limited to, ZONE, ZONE CUISINE, ZONE CAFE,
`
`ZONE SKIN CARE, ZONERX, ZONE LABS, ZONENET and ZONE SHAKES (the “ZONE
`
`Marks”).
`
`1g1_. at ‘H 5.
`
`10.
`
`11.
`
`Dr. Sears is well known as the source of ZONE branded products and services.
`
`Dr. Sears has authored numerous ZONE branded books which are premised upon
`
`using food as a drug to control and balance hormonal and insulin levels, including The Zone,
`
`Mastering the Zone, Zone Food Blocks, The Anti-Aging Zone, A Week in the Zone, The Soy Zone,
`
`The Top One Hundred Zone Foods, The 0megaRx Zone and The Anti-Inflammatory Zone. Sears
`
`Decl. at 11 6.
`
`12.
`
`Several of these books have appeared on The New York Times bestseller list.
`
`I_(L
`
`atfi[7.
`
`13.
`
`Dr. Sears’ The Zone was number one on The New York Times bestseller list in
`
`1996 and remained on that list for approximately twenty (20) weeks.
`
`1gl_. at 1[ 8.
`
`14.
`
`More than fly; million hard cover copies of Dr. Sears’ ZONE branded books have
`
`been sold in the United States alone. Q at 119.
`
`15.
`
`Dr. Sears’ works have been translated into 2; languages and are sold in at least Q
`
`foreign countries. L; at 1] 10.
`
`#564037
`
`3
`
`

`
`16.
`
`In addition to his ZONE branded books, Dr. Sears and his ZONE branded health
`
`and nutrition products and services are widely known from his numerous and frequent live and
`
`taped appearances, including seminars, conferences, radio shows, and network television
`
`interviews, throughout the country. Sears Decl. at 1] 11.
`
`17.
`
`In promoting his ZONE branded health and nutrition products and services, Dr.
`
`Sears has appeared on nationally-broadcast television shows, including The Today Show in 1996
`
`and again in January 2005, 20/20 in 1999, Good Morning America on June 9, 2000, June 15,
`
`2000 and again in May 2002, Dateline in July 2002, CBS Evening News on May 21, 2003, The
`
`Montel Williams Show on April 1, 2004 and Live With Regis and Kelly on February 2, 2005. Li.
`
`at 1] 12.
`
`18.
`
`Additionally, each year since 1998, Dr. Sears has conducted a week long ZONE
`
`branded seminar aboard a cruise ship, providing a series of presentations and demonstrations on
`
`mastering his hormonal and insulin control program. BL at 11 13.
`
`19.
`
`Dr. Sears is well and favorably known throughout the United States and has built
`
`up valuable goodwill and reputation in his ZONE Marks. 1; at 11 14.
`
`20.
`
`The widespread recognition, fame and goodwill associated with ZONE for
`
`products and services in the health and nutrition marketplace is a result of the Opposer’s
`
`continuous marketing efforts, national media attention, the expenditure of considerable amounts
`
`of money for advertising and promotional activities and by virtue of the high quality of the
`
`Opposer’s ZONE branded products and services.
`
`21.
`
`Opposer is the owner of approximately seventy (70) plus trademarks and service
`
`marks comprising or containing “ZONE” for a wide array of health and nutrition products and
`
`services.
`
`l_d, at 1] 15.
`
`#564037
`
`4
`
`

`
`22.
`
`By way of example, Opposer owns the following United States Trademark
`
`Registrations:
`
`Mark:
`
`ZONE
`
`Registration No.:
`Registration Date:
`App. Date:
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`
`Goods:
`
`2,689,749
`February 25, 2003
`May 22, 2000
`May 1995
`
`May 1995
`Publications, namely a series of books in the field of diet
`and nutrition.
`
`Mark:
`
`ZONERX
`
`Registration No.2
`Registration Date:
`App. Date:
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`
`Goods:
`
`Mark:
`
`Registration No.:
`Registration Date:
`App. Date:
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`
`Goods:
`
`2,929,836
`March 1, 2005
`September 17, 2003
`April 23, 2002
`
`April 23, 2002
`Workbooks and printed guides about diet, health, and
`nutrition.
`
`ZONE CUISINE
`
`2,997,305
`September 20, 2005
`March 1, 2004
`September 2003
`
`September 2003
`Prepared and packaged entrees consisting primarily of
`meat, fish, poultry, or vegetables.
`
`Mark:
`
`Registration No.:
`App. Date:
`Registration Date:
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`
`Goods:
`
`ZONE CUISINE
`
`2,968,210
`December 13, 2002
`
`July 12, 2005
`September 2003
`
`September 2003
`Catering services.
`
`#564037
`
`

`
`Mark:
`
`ZONE SKIN CARE
`
`Registration No.:
`Registration Date:
`App. Date:
`Date of First Use:
`
`Date of First Use
`
`In Commerce:
`Goods:
`
`2,623,974
`September 24, 2002
`March 30, 2001
`June 2000
`
`June 2000
`Skin care products, namely soaps, lotions, creams, and oils
`for the face, body, and hair.
`
`23.
`
`In accordance with Sections 7(b), 22 and 33(a) of the Lanham Trademark Act,
`
`Opposer’s above-cited registrations constitute prima facie evidence of the validity of the
`
`registered marks and of the registrations thereof, Opposer’s ownership of the marks shown in
`
`said registrations, and Opposer’s exclusive right to use the marks in commerce in connection
`
`with the goods and services named therein, without condition or limitation.
`
`24.
`
`Said registrations constitute notice to Applicant of Opposer’s claim of ownership
`
`of the marks shown within such registrations.
`
`25.
`
`Applicant had constructive notice of Opposer’s registration for ZONE (Reg. No.
`
`2,689,749) as of February 25, 2003, prior to the filing date of Application Serial No. 78/541,146
`
`for FROZONE on January 3, 2005.
`
`26.
`
`The Applicant seeks to register FROZONE as a trademark for “prepared entrees,
`
`side dishes and meals consisting primarily of meat, poultry or vegetables’’ and “prepared entrees,
`
`side dishes and meals consisting primarily of rice and pasta, baked goods consisting of cakes,
`
`cookies and muffins.”
`
`27.
`
`Applicant’s Application Serial No. 78/541,146 for FROZONE was filed on
`
`January 3, 2005 in the United States Patent and Trademark Office.
`
`28.
`
`Application Serial No. 78/541,146 was filed under Section l(b) of the Trademark
`
`Act claiming a bona fide intent to use the mark in commerce in connection with “prepared
`
`#564037
`
`6
`
`

`
`entrees, side dishes and meals consisting primarily of meat, poultry or vegetables’’ and “prepared
`
`entrees, side dishes and meals consisting primarily of rice and pasta, baked goods consisting of
`
`cakes, cookies and muffins.”
`
`29.
`
`Since Application Serial No. 78/541,146 is based upon an alleged bona fide intent
`
`to use, the filing date is the only date upon which Applicant may rely for purposes of priority.
`
`30.
`
`Application Serial No. 78/541,146 was filed on January 3, 2005, long after
`
`Opposer coined and began using his ZONE Marks in 1995.
`
`31.
`
`Application Serial No. 78/541,146 was filed on January 3, 2005, long after
`
`Opposer’s date of first use of May 1995 for ZONE (Reg. No. 2,689,749).
`
`32.
`
`Application Serial No. 78/541,146 was filed on January 3, 2005, long after
`
`Opposer’s date of first use of June 2000 for ZONE SKIN CARE (Reg. No. 2,623,974).
`
`33.
`
`Application Serial No. 78/541,146 was filed on January 3, 2005, long after
`
`Opposer’s date of first use of April 23, 2002 for ZONERX (Reg. No. 2,929,836).
`
`34.
`
`Application Serial No. 78/541,146 was filed on January 3, 2005, long afier
`
`Opposer’s date of first use of September 2003 for ZONE CUISINE (Reg. No. 2,968,210).
`
`35.
`
`Application Serial No. 78/541,146 was filed on January 3, 2005, long after
`
`Opposer’s date of first use of September 2003 for ZONE CUISINE (Reg. No. 2,997,305).
`
`36.
`
`The Applicant’s FROZONE mark and the Opposer’s ZONE Marks are Virtually
`
`identical in sound and appearance and create the same commercial impression.
`
`37.
`
`The term ZONE comprises the dominant portion of Applicant’s FROZONE mark.
`
`38.
`
`The term ZONE comprises the dominant portion of Opposer’s ZONE Marks,
`
`including Opposer’s ZONE, ZONE SKIN CARE, ZONERX and ZONE CUISINE marks.
`
`#564037
`
`7
`
`

`
`39.
`
`The term ZONE in the Applicant’s mark FROZONE has the identical meaning as
`
`the tenn ZONE in Opposer’s registered marks and common law marks.
`
`40.
`
`The term ZONE in FROZONE refers to and indicates compliance with Dr. Sears
`
`and his criteria for an insulin and hormonal balanced diet. Print outs from Applicant’s website
`
`are attached at Exhibit 3.
`
`41.
`
`Applicant’s prepared entrees, side dishes, meals and baked goods are advertised
`
`as all about “hormonal responses to food,” “regulating your body’s insulin,” and thinking of
`
`“food as a drug.” Print outs from Applicant’s website are attached at Exhibit 4.
`
`42.
`
`The Applicant’s goods, as set forth in the Application Serial No. 78/541,146, and
`
`Opposer’s ZONE branded health and nutrition goods and services are highly related, if not
`
`identical.
`
`43.
`
`The goods set forth in Application Serial No. 78/541,146 are “prepared entrees,
`
`side dishes and meals consisting primarily of meat, poultry or vegetables” and “prepared entrees,
`
`side dishes and meals consisting primarily of rice and pasta, baked goods consisting of cakes,
`
`cookies and muffins.”
`
`44.
`
`The goods set forth in Opposer’s Registration No. 2,997,305 for ZONE CUISINE
`
`are “prepared and packaged entrees consisting primarily of meat, fish, poultry, or vegetables.”
`
`45.
`
`Applicant’s prepared entrees, side dishes and meals consisting primarily of meat,
`
`poultry, vegetables, rice and pasta, and baked goods consisting of cakes, cookies and muffins and
`
`prepared and Opposer’s packaged entrees consisting primarily of meat, fish, poultry, or
`
`vegetables, are highly related, if not identical goods.
`
`46.
`
`The goods set forth in Opposer’s Reg. No. 2,689,749 for ZONE are “books in the
`
`field of diet and nutrition.”
`
`#564037
`
`8
`
`

`
`47.
`
`Applicant’s FROZONE prepared foods are specifically concerned with diet and
`
`nutrition. Print outs from Applicant’s website are attached at Exhibit 5.
`
`48.
`
`Applicant’s Application Serial No. 78/541,146 does not limit the channels of
`
`trade through which its goods will travel nor does it limit the consumers to whom such services
`
`are directed.
`
`49.
`
`Applicant’s goods are presumed to travel through all channels of trade and to be
`
`directed towards all relevant consumers.
`
`50.
`
`There are no limits on the channels of trade or consumers for Opposer’s goods
`
`and services as described in Opposer’s Reg. Nos. 2,689,749, 2,623,974, 2,929,836, 2,997,305
`
`and 2,968,210.
`
`51.
`
`The Applicant’s FROZONE goods and the Opposer’s ZONE branded goods and
`
`services will be sold or offered through the same charmels of trade.
`
`52.
`
`The Applicant’s FROZONE goods and the Opposer’s ZONE branded goods and
`
`services will be sold to the same customers.
`
`53.
`
`Consumers are likely to believe that Applicant’s goods, similarly marked and sold
`
`in the same channels of trade as Opposer’s ZONE branded goods and services, come from or are
`
`sponsored or endorsed by the same source.
`
`54.
`
`Consumers are likely to expect that Applicant’s goods, similarly marked and
`
`creating an identical commercial impression -- as a result of the use of the term ZONE in the
`
`context of food designed to assist dieters with hormonal control and insulin balance --, are of the
`
`same quality as Opposer’s ZONE branded goods and services.
`
`55.
`
`Upon information and belief, Applicant adopted and applied to register the mark
`
`FROZONE with actual knowledge of Opposer’s prior rights in and to the ZONE Marks for
`
`#564037
`
`9
`
`

`
`health and nutrition products and services and with a bad faith intent to trade off the good will of
`
`Opposer’s ZONE Marks.
`
`56.
`
`Upon information and belief, Applicant willfully copied Dr. Sears’ ZONE Marks
`
`in choosing FROZONE in a deliberate attempt to associate its goods with Opposer, Opposer’s
`
`ZONE Marks and the good will therein.
`
`57.
`
`58.
`
`59.
`
`Applicant maintains a website at the Internet address <zonechefs.com>.
`
`Applicant provides several dietary tips on its <zonechefs.com> website.
`
`Applicant’s dietary tips are virtually identical to tips that Dr. Sears offers in his
`
`own ZONE branded publications.
`
`60.
`
`Applicant’s <zonechefs.com> website suggests using the palm of your hand to
`
`determine the correct amount of protein to consume at each meal. Print outs from Applicant’s
`
`<zonechefs.com> website are attached at Exhibit 6.
`
`61.
`
`Dr. Sears uses this same methodology in his ZONE branded publications.
`
`Excerpts from Dr. Sears’ Mastering the Zone book, published in 1997, long prior to the filing of
`
`application Serial No. 78/541,146 on January 3, 2005, describing this tip are attached at Exhibit
`
`1.
`
`62.
`
`Applicant sells pharmaceutical grade fish oil supplements on its <zonechefs.com>
`
`website in connection with the mark Z-OMEGA-3. Print outs from Applicant’s website are
`
`attached at Exhibit 8.
`
`63.
`
`Dr. Sears has promoted the health benefits of pharmaceutical grade fish oil for
`
`numerous years and recommends such supplement as an essential part of his insulin and
`
`hormonal control program. Sears Decl. at 1] 16.
`
`#564037
`
`10
`
`

`
`64.
`
`Dr. Sears sells his own ZONE branded pharmaceutical grade fish oil supplements.
`
`I_d. at 1] 17.
`
`65.
`
`Applicant touts one of its chefs as the “former executive pastry chef to Dr. Barry
`
`Sears (author of the ZONE DIET).” Print outs from Applicant’s <zonechefs.com> website are
`
`attached at Exhibit 9.
`
`FIRST GROUND FOR RELIEF
`
`[UNDER 15 U.S.C. § 1052§d[[
`
`66.
`
`Opposer incorporates by reference paragraphs 1 through 65 as if fully set forth
`
`herein.
`
`67.
`
`The ZONE Marks have been used continually by Opposer since a date prior to
`
`any date on which Applicant may rely.
`
`68.
`
`Applicant’s FROZONE mark is identical or confusingly similar to Opposer’s
`
`ZONE Marks in appearance and in commercial impression.
`
`69.
`
`The goods of Applicant to be offered under its FROZONE mark are identical or
`
`related to Opposer’s goods and services provided under the ZONE Marks and to Dr. Sears
`
`himself.
`
`70.
`
`The use by Applicant of FROZONE for the goods listed in the subject application
`
`is likely to create the erroneous impression that Applicant’s goods originate with, are sponsored
`
`or promoted by, come from, or are otherwise associated with Opposer or Opposer’s goods and
`
`services provided under the ZONE Marks or that Applicant’s goods are endorsed, sponsored, or
`
`in some way connected with Opposer.
`
`71.
`
`Use of FROZONE by Applicant is likely to cause confusion, cause mistake or to
`
`deceive the public into the belief that the goods offered under FROZONE come from or are
`
`#564037
`
`1 1
`
`

`
`otherwise authorized or sponsored by Opposer in violation of Section 2(d) of the Lanham Act, 15
`
`U.S.C. § 1052(d).
`
`WHEREFORE, the Opposer requests that this opposition be sustained and that
`
`Trademark Application Serial No. 78/541,146 filed on January 3, 2005 by Zone Chefs, LLC be
`
`rejected and its registration refused.
`
`Respectfully submitted,
`
`BARRY D. SEARS, PH.D.
`
`
`B
`is attomeys,
`
`
`
` orah L. Benson
`Peter A. Herbert
`
`Amy B. Spagnole
`Hinckley, Allen & Snyder LLP
`28 State Street
`
`Boston, MA 02109
`Tel: (617) 345-9000
`Fax: (617)345-9020
`
`Dated: December 30, 2005
`
`M“ 3'“:*‘*::::,r§::.::::°s:.?.?;L:::.ar:.?:n
`?1‘\t\'h<alti)‘|:taU::.l(iilresstt?dei?o the Commissioner for Trademarks,
`
`d
`
`
`
`#564037
`
`12
`
`

`
`Exhibit 1
`
`

`
`IN THE UNITED STATES PATENT & TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`)
`
`) )
`
`) )
`
`BARRY D. SEARS Ph.D.,
`
`Opposer,
`
`V-
`
`ZONECHEFS, LLC,
`
`)
`)
`)
`)
`)
`Applicant.
`)
`
`Opposition No.
`
`Mark:
`Serial No.:
`Classes:
`
`FROZONE
`78/541,146
`29, 30
`
`DECLARATION OF BARRY D. SEARS PH.D.
`
`1, Barry D. Sears. Ph.D., on oath hereby depose and state as follows:
`
`1.
`
`I am a scientist and author who has achieved considerable fame in
`
`connection with the lifelong hormonal and insulin control program that I first created
`
`about fifteen (15) years ago.
`
`2.
`
`My program uses food as a drug to help people control and balance their
`
`hormonal and insulin levels to achieve maximum mental productivity and as a means to
`
`improved health.
`
`3.
`
`I branded my writing, teaching and consulting on the benefits of an
`
`insulin balanced hormonal control diet with the term “ZONE.”
`
`4.
`
`I adopted the term ZONE as my trademark to analogize the health benefits
`
`of my products and services compliant with my hormonal control program for ordinary
`
`dieters to that of the “flow” achieved by superior athletes during sports participation.
`
`

`
`5.
`
`Since creation of my hormonal control/insulin balanced program, I have
`
`provided a wide array of health and nutrition products and services that are compliant
`
`with this program under the trademark ZONE and composite trademarks all containing
`
`ZONE as the dominant portion thereof, including, but not limited to, ZONE, ZONE
`
`CUISINE, ZONE CAFE, ZONE SKIN CARE, ZONERX, ZONE LABS, ZONENET and
`
`ZONE SHAKES.
`
`6.
`
`I have authored numerous ZONE branded books relating to using food as
`
`a drug to control and balance hormonal and insulin levels, including The Zone, Mastering
`
`the Zone, Zone Food Blocks, The Anti-Aging Zone, A Week in the Zone, The Soy Zone,
`
`The Top One Hundred Zone Foods, The OmegaRx Zone and The Anti-Inflammatory
`
`Zone.
`
`list.
`
`7.
`
`Several of these books have appeared on The New York Times bestseller
`
`8.
`
`The Zone was number one on The New York Times bestseller list in 1996
`
`and remained on that list for approximately twenty (20) weeks.
`
`9.
`
`More than five million hard cover copies of my ZONE branded books
`
`have been sold in the United States alone.
`
`10.
`
`My works have been translated into twenty-two (22) languages and are
`
`sold in at least forty (40) foreign countries.
`
`11.
`
`In addition to my ZONE branded books, myself and my ZONE branded
`
`health and nutrition products and services are widely known from my numerous and
`
`frequent live and taped appearances, including seminars, conferences, radio shows, and
`
`network television interviews, throughout the country.
`
`#564041
`
`2
`
`

`
`12.
`
`In promoting my ZONE branded health and nutrition products and ~
`
`services, I have appeared on nationally-broadcast television shows, including The Today
`
`Show in 1996 and again in January 2005, 20/20 in 1999, Good Morning America on June
`
`9 and June 15, 2000 and again in May 2002, Dateline in July 2002, CBS Evening News
`
`on May 21, 2003, The Montel Williams Show on April 1, 2004 and Live With Regis and
`
`Kelly on February 2, 2005.
`
`13.
`
`Additionally, each year since 1998, I have conducted a week long ZONE
`
`branded seminar aboard a cruise ship, providing a series of presentations and
`
`demonstrations on mastering the hormonal and insulin control program that I developed.
`
`14.
`
`I am well and favorably known through the United States and I have built
`
`up valuable goodwill and reputation in my ZONE Marks.
`
`15.
`
`I am the owner of approximately seventy (70) plus trademarks and service
`
`marks comprising or containing “ZONE” for a wide array of health and nutrition
`
`products and services.
`
`16.
`
`I have promoted the health benefits of pharmaceutical grade fish oil for
`
`numerous years and recommend such supplement as an essential part of my insulin and
`
`hormonal control program.
`
`#564041
`
`3
`
`

`
`17.
`
`I sell my own ZONE branded pharmaceutical grade fish oil supplements.
`
`The declarant further declares that all statements made herein of his knowledge
`
`are true, and that all statements made on information and belief are believed to be true;
`
`and further declares that these statements were made with the knowledge that willful
`
`false statements and the like so made are punishable by fine or imprisonment, or both,
`
`under Section 1001 of Title 18 of the United States Code and that such willful false
`
`statements mayjeopardizethe validityofthisdeclarati
`
`December@ 2005
`
`Barry D. Sears Ph.D.
`
`#564041
`
`4
`
`

`
`Exhibit 2
`
`

`
`The Zone: AnEmpirical Study
`.
`'
`,
`.
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`4
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`._
`
`"
`
`A"
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`A
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`.
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`Page 1' Of'8
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`.5
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`
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`The Zone: Evidence of a Universal Phenomenon for-Athletes
`Across Sports
`JanetA Young and Michelle D Pain
`-Monash University, Melbourne, Australia
`
`
`
`
`Ill
`
`Unlversalitv of the Sport Zon
`
`
`
`
`
`
`
`
`_( zuantitaflve Analysis
`
`
`
`'
`
`umrna
`
`‘
`
`References
`
`
`
`_
`
`ABSTRACT
`
`This paper examines the heightened states of consciousness during participation in sport‘ termed the zone
`or flow. Theoretical frameworks and studies of the phenomenon are described. The notion of a universal
`zone in sport is explored with a review of Young's (1999a) comparative analysis of flow experiences of
`professional tennis players with Jackson's (1993, 1996) elite athletes. Qualitative analyses of tennis
`players‘ and elite athletes‘ narratives of flow support flow_theory's posited structure of flow consisting of
`eight dimensions. No significant differences were found between tennis players and elite athletes on the
`
`
`
`

`
`Page_2 ofS V
`
`lkecent applied sportpsychology literature is replete with references to "the zone" (e.g., Clarkson,
`
`ete, the zone characterises a
`
`diverse range ofphenomena covered by the umbrella terms ofecstasy, transcendent or altered states ofI
`consciousness 111 sport participation. Such terms are variously denoted and include the concepts of
`peaks", "perfect moments", "mindfulness", "peak experience" and "flow". In the sport psychology
`.literature, the terms zone and flow are in fact used interchangeably and synonymously (Cooper, 1998;
`Heathcote, 1996).
`
`Reversal theory posits an explanation ofthe zone in terms ofmetamotivational states (modes or
`mental states in which an individual's motives are structured, interpreted and organised within
`experience) and reversals (switches between modes). Specifically, individuals are thought to experience
`the zone as an optimal relaxing telic (from the Greek word "telos" meaning goal or end) or exciting
`paratelic ("para" being the Greek word for beside or alongside) metamotivational state. A range of
`personal and situational factors is conceptualised to influence. telic or paratelic zone states.
`
`Zone Sport Research
`
`htfp://w'ww.athleticinsia'1-1+mmrxn.1n--—»mi.
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`--
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`~ Page 3 of'8
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`http://www.ath1eticinsi2ht.cnm/Vn‘ ‘ 7”” ’”“‘“‘''''''f
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`

`
`V Page of8
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`e, with an equal number. from Australia
`per sport], which included track and field,
`A rowing, swimming, cycling, triathlon, rugby and field hockey). To provide the basisfor such a
`
`rewarding in and of itself', and (b) respond to the Bxperien
`predicted that the tennis players and elite athletes, represen '
`
`
`
`a miscellaneous category. A summary ofthe results ofthis procedure, together with those obtained by
`Jackson, is presented in Table 1.
`'
`
`
`
`Table 1.
`
`
`Theoretical Dimensions ofFlow and Miscellaneous Category, Percentage* ofTennis Players and Elite
`Athletes Citing Themes Within Each Dimension and Percentage ofAll Raw Data Themes Represented
`
`by Bach Dimension
`
`Flow Dimension
`
`-
`
`
`
`
`Elite Athletes
`(Jackson, 1996)
`
`themes
`
`
`
`
`
`3. Clear goals and feedback
`
`
`
`5. Lossself-consciousness
`
`6. Paradox‘ of control
`
`7, Transformation of time
`
`
`
`
`
`http://vvww_a.thle+1'nin e1‘n1«+ M» I‘ 7-‘ 1 *-- " "“
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`

`
`offlow, a one-way ANOVA test was conducted using mean item _scores. The test revealed there were no
`significant differences between tennis players and elite athletes on the items overall, E(1, 52) = 1.16 p
`> .05, MSB = 1.04.
`‘
`-.
`'
`
`Questionnaire (Privette, 1984) were compared. Following the procedure adopted by Yeagle, Privette,
`and Dunham (1989) to identify differences between groups on the importance of experiential correlates
`ofthe peak experience, a series oft-tests were conducted in which mean item scores for each group of
`_ athletes were compared. The results ofthese tests, after being adjusted by the Bonferroni correction for
`multiple tests, are reported in Table 2, with items listed in abbreviated form and in the order reported by
`Jackson (1993).
`.
`
`
`
`Elite Athletes
`
`(Jackson, 1996) l1l"l'T\'//unxnxr v2+l—\lo+.‘»..'...-2 4-1 — -
`
`

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`
`The Zone: An Empirical Study
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`
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`
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`
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`
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`
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`llllllllllllli
`
`_
`Notes.
`l.Values of 3.5 or more indicate endorsement.
`2. *Sigm'ficant at an alpha level of .05 divided among 27 comparisons (Bonferroni correction for
`multiple tests).
`'
`’
`
`With no significant differences between tennis players and elite athletes from other sports on the
`Experience Questionnaire (Privette, 1984) items overall and the majority of individual items’, and strong
`endorsement from each group of athletes for the key theoretical characteristics of flow (clear inner
`process and focus, fulfilment, intention, fiin, high performance, and intrinsic reward), Young (1999a)
`suggested that tennis players and elite athletes from other sports experience flow in qualitatively similar
`manners. Notwithstanding this notion of a common flow experience, Young proposed that the finding of
`significant differences between tennis players and elite athletes on approximately one quarter of 27
`items contained in the Experience Questionnaire is evidence of individual differences for athletes across
`sports in the phenomenology of flow. Further, it was noted that the fact that many of the items of the
`inventory had to be discarded due to inadequate Cronbach apha coefficient values was indicative that
`tennis players as a group display variation in the experience of flow.
`
`»
`
`- Summary
`
`

`
`~‘ The Zone:~An Empirical
`
`Page 7 of 8
`
`References
`
`Apter, M. J. (1982). The ex erience ofmotivation: The theo
`of s cholo ical reversals. London:
`Academic Press.
`,
`.
`Apter, M. J. (1'989).'Reversal theory: Motivation, emotion and personality. London: Routedge.
`Clarkson, M. (1999). Competitive fire. Champaign, IL: Human Kinetics.
`
`Cooper, A. (1998). Pla in in the zone: Ex lorin the s iritual dimensions ofs ort. Boston:
`Shambhala.
`'
`
`. Csikzentmihalyi, M. (1975). Play and intrinsic rewards. Journal ofHumanistic Psychology, 15, 41-
`
`63.
`
`Csikzentmihalyi,
`(1990). Flow: The psychology of optimal experience. New York: Harper &
`Rowe.
`.
`'
`Douillard, J. (1994). Body, mind and sport. New York: Three Rivers Press.
`
`Garfield, C., & Bennett, H. (1984). Peak erformance: Mental trainin techni ues of the world's
`greatest athletes. New York: W
`-
`arner Bros.
`
`Goldberg, A. S. (1998). Sports slump busting. Champaign, IL: Human Kinetics.
`
`Heathcote, F. (1996). Peak performance: Zen and the sporting zone. Dublin, Ireland: Wolfhound.
`Jackson, S. A. (1992). Athletes
`flow: A qualitative investigation offlow_states in elitefigure
`skaters. Journal ofApplied Sport Psychology, 4(2), 161-180. _
`
`Jackson, S. A. (1995). Factors influencing the occurrence of‘flow states in elite athletes. Jgurr1_a_1_C_>_f
`Applied Sport Psychology, 7, 13 8- 1 66.
`
`Jackson, S. A. (1996). ‘Toward a conceptual understanding to the flow experience in elite athletes.
`Research Quarterly for Exercise and Sport, 67(1), 76-90.
`
`1.4-4-,.'\.//.n...... _.4.1_1.4-
`
`-
`
`
`
`

`
`The Zone: An Empirical Study 4
`
`ofbein . Princeton, NJ2 VanNostrand.
`Maslow, A. H. (1962). Toward a s cholo
`MU1‘PhY: 3- (1995) . New York: Berkley.
`
`y ofthe athlete's greatest moment in sport. In Proceedings of
`_
`osium Ps chomotor Learnin and S ort Ps cholo
`S m osium (pp.
`the Canadian Ps chomotor S
`399-404). Toronto, Canada: Coaching Association of Canada.
`Ravizga, K. (1984). Qualities ofthe peak experience. In J. M. Silva & R. S. Weinberg (Eds.),
`Ps cholo ical foundations ofs ort (pp. 452-461). Champaign, IL: Human Kinetics.
`’
`Shainberg, L. (1989). Finding the zone.'New York Times Magazine, pp. 34